Family and Defacto Relationship Law
Wills & Estates
One unfortunate consequence of the breakdown of some adult relationships is the disruption to, and rearrangement of, children’s lives. Parental separation is traumatic in itself – causing anguish and emotional damage to young and adolescent children. That trauma is magnified when routines are broken, and where vulnerable children are exposed to hostile parental conflict and disagreements about parenting arrangements. It is therefore important to make arrangements regarding the future care, welfare and development of your children as quickly and amicably as possible. Lindsay Woods, our family law accredited specialist lawyer, has many years of experience in this aspect of family breakdown, and endeavours to ensure that children’s interests are paramount, that his client’s wishes are given proper weight, and that final arrangements are practical.
Some parents can work out satisfactory informal arrangements for their children. Others can’t. Even for those whose break up is reasonably amicable, disagreements may arise between spouses/former partners about where and with whom the children will live, and when the children will spend regular time with and communicate with the other parent. Other common areas of dispute revolve around the children’s education (e.g. which school they will attend), the sport and recreational activities the children will participate in, health-related issues, the surname the children will go by, and a desire by one parent to relocate – with the children – to a place far away from where they presently live. Having clear parenting arrangements in place for your children is essential in a time of such upheaval. Clear arrangements can provide consistency and certainty for children, thereby reducing their stress while giving you peace of mind.
Sometimes it proves difficult to reach agreement about sensitive and emotional issues. In cases where there is disagreement, the Family Law Act 1975 generally requires separated parents to attend family dispute resolution (mediation) with a registered family dispute resolution practitioner to try to reach an agreement about their children’s future before they will be permitted to commence court proceedings seeking parenting orders. There are some exceptions to this general rule and we can provide advice about this if relevant to your circumstances. Free family dispute resolution services are provided by the Family Relationship Centre, a government-funded organisation. Inexpensive dispute resolution services are provided by other community-based organisations such as Relationships Australia and Uniting Care. There are also many private mediators who are qualified to chair mediations regarding children. Whilst the public and community-based service providers do not generally allow lawyers to attend mediation with their clients, private mediations usually involve the participation of the parties’ lawyers. Our family law solicitor is very experienced with mediations and can support you with this.
Whilst family dispute resolution is more-or-less compulsory before any court proceedings can be commenced, it is possible to engage in negotiations with your spouse/former partner in an effort to reach agreement about parenting arrangements without attending mediation. We can assist you with any negotiations you may wish to have with your spouse/former partner. Trying to resolve the dispute through negotiation should be fully explored before considering court proceedings. However, if a negotiated settlement cannot be found, and court proceedings eventually become the only option, we will work with you to present your case (including your desired outcomes for the children) based on the available evidence.
For those who can reach agreement about all necessary arrangements for the future care, welfare and development of their children, with or without input from a lawyer or mediator, the agreement can be documented in one of the following ways:
If you and your spouse/former partner have a reasonably amicable relationship, a Parenting Plan may be sufficient. This is a less formal way to record an agreement and is generally not enforceable by a court if one party does not comply with the arrangements set out in the Plan. It is often best to formalise agreed parenting arrangements by way of consent orders made by the court. This puts in place arrangements which have the approval of the court and which can be enforced by the court if a party fails to comply with the orders. We can help you to achieve either of these outcomes.
If you and your spouse/former partner are unable to reach total agreement about all parenting matters, you may need to apply to the court to deal with the disputed issues. The court is required to consider various provisions in the Family Law Act when making parenting orders. Importantly, the court is required to make orders which it sees as being in the best interests of the children. The children’s interests are given priority over the parents’ interests. Often there are some difficult issues for the court to decide. Sometimes the court will order the preparation of a Family Report to assist it to make its decisions. Family Reports are prepared by experts. Usually, they are social workers experienced in this field, but may occasionally be psychologists.